Use of Prior Testimony

When it comes to admissibility, all prior testimony is not created equal. In Texas, different rules apply, depending on how it is offered and under what circumstances the testimony was originally given.

Although it is important to understand how prior testimony may be used generally, the rules regarding its admissibility become particularly important when a case is re-tried after remand or order of new trial, or if an attorney wants to offer testimony at trial that was previously given at a pre-trial evidentiary hearing. Before an attorney decides to rely on prior testimony in lieu of calling live witnesses, several questions must be asked.

What type of testimony is it? There are three types of prior testimony: (1) affidavits, (2) depositions, and (3) prior testimony at hearing or trial.

Affidavits. Affidavits are generally inadmissible at trial to prove the matter asserted therein unless they fall under a hearsay exception in the rules or statutes (such as §18.001 affidavits). However, even when an affidavit doesn’t fall within a hearsay exception, it will still be given full probative value if it is admitted into evidence without objection. (This rule is not limited to affidavit testimony, and applies to all hearsay which is admitted into evidence without objection.) For that reason, it can’t hurt to at least make the offer. And certainly the parties could stipulate to the admissibility of affidavit testimony in order to streamline the presentation of evidence at trial (or for any other reason). Furthermore, certain portions of an affidavit could possibly be admissible under rules regarding admissions and statements against interest.

Depositions. For deposition testimony, the attorney may need to ask additional questions: Was the deposition given in the same case or a different case? Is the witness a party?

Was the deposition testimony given in the same or a different proceeding? Rule 801(c)(3) of the Texas Rules of Evidence clearly provides that a deposition taken in the same proceeding in which it is offered is not considered hearsay. Therefore, assuming a deposition is not subject to exclusion under some other rule (e.g., a discovery rule), a deposition taken in the same proceeding is admissible into evidence. The substance of the deposition testimony, like any other evidence, however, must also meet the requirements for admissibility under all other evidentiary rules as well.

If the deposition testimony was taken in a different case, then its admissibility hinges upon the question of whether the witness is a party.

Is the witness a party? If the deposition witness is a party, then testimony given in a different case may be admissible under TRE 801(e)(2), which defines statements by party opponents as “non-hearsay.” To be admissible under 801(e)(2), the statement need not be against interest, but it must be made by a party opponent. (A party’s own deposition testimony in a different proceeding may not be admitted into evidence unless it is admissible under some other rule.)

If the witness is a non-party, then deposition testimony taken in a different proceeding will be admissible only if the deponent is unavailable to testify. The requirement for “unavailability” is a hurdle for admissibility in some circumstances, but it is not always insurmountable. First of all, the definition of “unavailable” includes more than death, illness or disappearance. For example, a witness’s purported “lack of memory” as to a particular matter is sufficient to deem that witness “unavailable” under TRE 804(b)(1), rendering prior deposition testimony on that particular point which was given in another proceeding admissible. Other situations which will confer “unavailable” status to a witness include: the claiming of a privilege, refusal to testify (after being ordered to do so by the trial court) and mental infirmity.

Prior Testimony. Finally, for priortestimony given in the same or other proceedings, the first thing that needs to be ascertained is whether the witness is a party or a non-party? If the prior testimony comes from a party, then the analysis further examines whether the prior testimony offered was elicited from a party opponent or the party who is offering the testimony into evidence.

A party opponent’s prior testimony will be treated the same as if it were a party opponent’s deposition in a different proceeding. Because TRE 801(e)(2) defines statements by party opponents as “non-hearsay,” the hearsay bar would not preclude its admissibility. However, a party’s own prior testimony is generally inadmissible. In order for it to come into evidence, the testimony would have to be admissible under some other rule, e.g., as a prior consistent statement offered to rebut a charge of recent fabrication, under TRE 801(e)(b).

Prior testimony of a non-party is no different than a non-party’s deposition testimony from a different proceeding. Before prior testimony of a non-party will be admissible, whether same or different proceeding, the proponent must show that the non-party witness is “unavailable” within the meaning of TRE 804(b)(1) and discussed above.

Even if none of the rules or principles above provide an avenue for admissibility of the prior testimony you want to offer, don’t give up. Even if the prior testimony is not generally admissible, certain specific portions of the testimony may still be admissible under other theories. For example, if it’s a statement against interest, it may be admissible as an exception to the hearsay bar, whether made by affidavit, deposition or testimony, by a party or a non-party, in the same or different proceeding. So keep trying.

The Rolling Stones said it best: “You can’t always get what you want, but if you try sometimes, you just might find you get what you need.”

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas